15:0355(76)AR - AFGE National INS Council and INS -- 1984 FLRAdec AR

[ v15 p355 ] 15:0355(76)AR
The decision of the Authority follows:

15 FLRA No. 76
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO,
NATIONAL IMMIGRATION AND
NATURALIZATION SERVICE
COUNCIL
Union
and
U.S. IMMIGRATION AND
NATURALIZATION SERVICE
Agency
Case No. O-AR-334
DECISION
This matter is before the Authority on exceptions to the award of
Arbitrator Steven J. Goldsmith filed by the Agency under section 7122(a)
of the Federal Service Labor-Management Relations Statute and part 2425
of the Authority's Rules and Regulations. The Union filed an
opposition. /1/
A grievance was filed in this case by the grievant disputing the
Activity's accounting of official time between his positions as Eastern
Region Vice President and First Vice President of Local 1917. The
grievance demanded that any official time taken in the grievant's
capacity as local vice president not be charged against the hour
allotment for the regional vice president, and the grievance stated that
it covered "all past and future unauthorized charges of representation
time against the Eastern Vice President's allotment of 416 hours." The
grievance was not resolved and was submitted to arbitration on the
following stipulated issue:
Is the Agency justified in denying official time to (the
grievant) for Union representational activities in excess of
twenty per cent or four hundred and sixteen hours per year? If
not, what shall the remedy be?
The Arbitrator determined that the Activity's action was not
justified. In addition, with respect to a remedy, the Arbitrator stated
as follows:
I am aware that only the rights of (the grievant) were
litigated" here; not those of any other Union official. However,
to avoid the necessity for an additional arbitration, (should the
parties fail to agree on relief, if any, for other officials), I
have granted the Union's request for a remedy for employees
"similarly situated" to (the grievant).
Accordingly, as his award the Arbitrator directed certain remedial
action with respect to the grievant and with respect to other employees
similarly situated. The Arbitrator in his award also expressly retained
jurisdiction over this matter for a limited time for the limited purpose
of deciding any disputes as to the directed remedy.
As one of its exceptions, the Agency contends that the Arbitrator
exceeded his authority. Specifically, the Agency principally argues
that the scope of relief granted by the Arbitrator was in excess of his
contractual authority by deciding issues not raised or otherwise
presented to him at the hearing and by granting relief to persons who
did not file a grievance. It is the Agency's position that the
Arbitrator should have confined his award to the issue stipulated by the
parties which was concerned solely with the use of official time by the
grievant.
The Authority has indicated that an award may be found deficient as
in excess of the arbitrator's authority when the arbitrator awards
relief to employees who did not file grievances on their own behalf or
who did not have the union file grievances for them. See Internal
Revenue Service, Birmingham District Office and National Treasury
Employees Union, NTEU Chapter 12, 6 FLRA 143 (1981) (citing Hotel
Employees Union v. Michelson's Food Services, 545 F.2d 1248 (9th Cir.
1976)). In terms of this case, the Authority concludes that the award
is deficient. The Agency has substantiated that the issue as stipulated
by the parties for resolution pertained solely to the Activity's
accounting of official time for the grievant. Furthermore, it is
unsubstantiated that either the parties' collective bargaining
agreement, see IRS, Birmingham, 6 FLRA at 147, or the Arbitrator's
purpose of avoiding an additional arbitration authorized the Arbitrator
"to transform the proceeding into a sort of class action on behalf of
all employees . . . who were similarly situated," see Michelson's Food
Services, 545 F.2d at 1253. In these circumstances the Authority finds
that the Arbitrator decided an issue not presented to him when he
awarded relief under the parties' collective bargaining agreement to
"other employees similarly situated," as well as to the grievant, and
that consequently the Arbitrator exceeded his authority. Accordingly,
the award is modified by striking "and to other employees similarly
situated" in paragraphs 2-3 of the award and by striking "and other
employees similarly situated" in paragraph 4 of the award. /2/
Issued, Washington, D.C., July 24, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ In its opposition the Union asserts that the Agency's exceptions,
which were filed by Department of Justice, should be dismissed because
Immigration and Naturalization Service, and not Department of Justice,
was a "party" to the arbitration. However, the Authority finds that the
exceptions in this case have been properly filed by Department of
Justice on behalf of its component bureau the Immigration and
Naturalization Service and in accordance with part 2425 of the
Authority's Rules and Regulations.
/2/ The Agency also filed an exception to the Arbitrator's retention
of jurisdiction. Because the Agency fails to establish that the
retention of jurisdiction for 30 days for the limited purpose of
resolving any dispute over the remedy is deficient, this exception is
denied.